Use job duties, not title, to set exempt status

Here’s a reminder that job duties are what determine exempt status under the Fair Labor Standards Act (FLSA). You cannot classify someone as exempt based just on job title or education.

For example, requiring a college degree for jobs that really could be performed without such training and experience doesn’t magically make the employee ineligible for overtime protection.

Recent case: David, who has a law degree and is licensed to practice law, signed on with a legal temp firm and was assigned to work for a large New York law firm.

The job required the law degree and license and consisted of reviewing documents filed in various lawsuits. David was provided with search terms and specific instructions on what to look for. He earned $25 per hour and often worked 50 to 60 hours per week. He received no overtime pay for working over 40 hours per week.

David sued, alleging that he should have been paid overtime.

The firm and the temp firm argued that David was an exempt professional and was therefore not eligible for overtime. They also argued he did not need to be paid on a salary basis because the FLSA regulations exempt lawyers and doctors from that requirement.

David lost in the district court, but appealed. His lawsuit was reinstated.

The appeals court concluded that “a machine” could have done David’s job. It was not professional legal work and didn’t really require a law degree and license. David can now move forward with the lawsuit on behalf of himself and other similarly situated document reviewers. (Lola v. Skadden, Arps, Slate, Meagher & Flom, No. 3845, 2nd Cir., 2015)

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